Can judicial activism pave way for construction of Kalabagh dam?

Chief Justice Mian Saqib Nisar on Monday took suo motu notice of the water shortage in the country after social media campaigns and countless calls to take up the matter.

Chief Justice’s office issued the schedule to hear the cases in Islamabad and provincial capitals.

The CJ Saqib Nisar will hear the cases regarding water shortages from June 07 onwards. According to a schedule released, the Supreme Court will hear cases regarding the water shortage on June 07 in Islamabad. Moreover, On June 9 and 10, the apex court’s Karachi and Lahore registries will also hold hearings on the lack of water supply in the country. Following the hearing in these cities, CJP will hear cases pertaining to water issues in other provincial capitals.

The SC issued notices to top brass including Capital administration, development division, advocate general, and attorney general to report on the matter.

On Monday, when the Apex Court’s three-member bench was hearing a 20-year-old petition filed by Barrister Zafarullah Khan of Watan Party.

In the petition which was one of the many petitions filed by the Lahore based lawyer in the larger interest of the nation. He had questioned that since 20 % of Pakistan’s growth rate was dependent on water supply, yet none of the government made any serious attempt to build a dam in the country for the past 48 years.

A petition filed keeping in view the interest of future generations remained part of the backlog of the petitions which did not see any progress. The petition-Watan Party VS Federation (Constitution Petition C.P. No 37/2000 on Kalabagh Dam for generation of electricity was finally revived after the CJ Saqib Nisar acknowledged the water shortage as a serious issue facing the country.

On Monday, when the Apex Court’s three-member bench was hearing a 20-year-old petition filed by Barrister Zafarullah Khan of Watan Party.

On September 16, 1991, under a famous water accord, construction of additional reservoirs was decided. All the four provinces had shown the consensus to go ahead with the projects. According to the Lahore Chamber of Commerce and Industry (LCCI), the project was supposed to be completed in 1993. But, delay of decades has caused the already cost the country staggering $288 billion, according to the petitioner.

Moreover, in the ninth meeting of the Council of Common Interests (CCI) on May 9, 1998, the case was reviewed.

In 2004, the representatives of all provinces had also undertaken a technical study to endorse and approved the feasibility for Kalabagh Dam.

All the technical issues were also resolved on April 11, 2005, and the project was given a go ahead.

In 2016, the Supreme Court dismissed a plea of Engineers Forum about the construction of Kalabagh Dam.

Kalabagh Dam is a proposed hydroelectric dam on the Indus River, which, if constructed would have 3,600 megawatts electricity generation capacity.

It potentially will be able to store ill store 6 million acre-feet of water and can generate a hefty $12 billion annually for Pakistan’s ailing economy.

In January 2018, the officials from LCCI had said that Kalabagh dam should not be sacrificed to political wills as it can play a key role in alleviating the beleaguered economy out of the quagmire.

Justice Umar Ata Bandial who is part of the three-member bench which heard the petition on the construction of Kalabagh dam on April 02 was the of Chief Justice of Lahore court in 2012.

On November 29, 2012, Lahore High Court Chief Justice Umar Ata Bandial ordered the federal government to overcome all the hurdles and make a consensus to build the controversial dam.

He held that, “In the circumstances and for detailed reasons to follow, the Federal government is directed that in the performance of its duty under Article 154 of the Constitution, it shall in letter and spirit take steps that implement the decisions of the CCI dated September 16, 1991, and May 9, 1998, regarding Kalabagh Dam.”

The project which was twice approved by the CCI and according to CJ Lahore, under the Article 157(7), this was obligatory to act on CCI policy decision unless revoked or modified by the parliament at the behest of the Federal government.

Political parties in Pakistan for their own vested regional interests ignored the issue. A national consensus on the dam did not develop despite the lapse of so many years, the political establishment in the country reacted strongly against the decision to start construction of the dam.

The project was not taken up citing failure to reach a consensus over the project. All the mainstream parties including PML-N, PPP, and PTI showed respect for the court decisions but fearing the unrest and deep divisions among the people didn’t push for the implementation of the issue.

The disastrous effects of climate change on water levels in Pakistan have also convinced the authorities to save the water worth billions of dollar wasted into the Indian Ocean every year. No major dam has been constructed since 1960.

In Pakistan, the supply of drinkable water requires special attention as presently a large number of households do not have access to enough water. A strategy to expand access to clean drinkable water should be the priority of the next government. Indian’s decision to make dams on Pakistan’s share of water in IOK is already having a toll on the amount of water in the country.

Pakistan needs water policy. Due to water scarcity in the country, wastewater treatment plants are required. Moreover, forests are essential to water conservation and climate regulation. Dams are imperative to overcome water woes in the country of 208 million people. In the past, LHC decision was not implemented. The severity of the matter this time around may convince Apex Court to order the construction of Kalabagh dam. But, an implementation may not be easy.

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